From Our Bureau
NEW DELHI: The Supreme Court on Friday asked the government to give importance to maintenance of an employee’s family life while posting or transferring him/her, but employee has no fundamental right to posting or transfer, no vested right to posting.
A Bench of Justices D Y Chandrachud, Surya Kant and Vikram Nath said the state cannot be oblivious while crafting policy to basic constitutional values, including preservation of a family life which is a facet of Article 21.
While formulating a policy for its own employees, the State must give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy, the court said, adding that executive instructions and administrative directions concerning transfers and postings did not confer an indefeasible right on an individual to claim the same.
However, a policy governing the same has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy, the Court stated.
It said the spouse postings were subject to the requirement of administration. In case of a conflict between the executive instructions and rules framed under Article 309, the Court said the rules must prevail.
The Bench was hearing an appeal by S K Naushad Rahaman and others against a decision by the Kerala High Court. The High Court had upheld the validity of a circular of the Central Board of Indirect Taxes and Customs not to consider transfers after enforcement of the recruitment rules, but with exception of allowing such transers on extreme compassionate grounds on a “case to case basis” as per the administrative requirements.
The Central Administrative Tribunal (CAT) upheld the challenge, but the High Court reversed its decision.
The Apex Court held that no employee could assert a vested right to claim an ICT when the authority entrusted with the power of framing rules under Article 309 of the Constitution excluded the specific provision that allowed it.
“In the absence of a specific provision to that effect, an employee from outside the cadre under the control of a CCA cannot claim an ICT based on executive instructions,” the Court made it clear.
On gender discrimination and discrimination against the disabled, it said the apex court had spoken previously about systemic discrimination on account of gender at the workplace.
“The provision which has been made for spousal posting is in that sense fundamentally grounded on the need to adopt special provisions for women which are recognized by Article 15(3) of the Constitution,” the Bench noted in this context.
In the top court, the appellants argued that the circular resulted in indirect discrimination and denied equality of opportunity to women guaranteed under Articles 15(1) and 16(1)of the Constitution, as well as discrimination between Group A, B and C.
The Centre took the stand that transfer as condition of service is governed by the applicable rules and as such a transfer cannot be claimed as a matter of right.
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